SEC News Digest

Issue 2012-67 April 6, 2012

Commission announcements

Commission Freezes Accounts of Six Chinese Citizens and One Offshore Entity Charged with Insider Trading

The announced that it has obtained a court-ordered freeze of the assets of six Chinese citizens and one British Virgin Islands entity charged with insider trading in Zhongpin Inc., a China-based pork processor whose shares trade in the U.S.

The SEC’s complaint, filed in U.S. District Court in Chicago on April 4, alleges the defendants reaped more than $9 million by trading in Zhongpin ahead of a March 27 announcement of a proposal to take the company private. The complaint names as defendants one entity, Prestige Trade Investments Ltd., and six individuals, Siming Yang, Caiyin Fan, Shui Chong (Eric) Chang, Biao Cang, Jia Wu, and Ming Ni. The SEC alleged that Yang formed Prestige in January and funded its U.S. brokerage account in March with $29 million transferred from a Hong Kong bank.

According to the SEC’s complaint, the seven defendants bought substantial quantities of common stock and call options in Zhongpin between March 14 and March 26. Zhongpin’s stock price jumped 21.8% on March 27 when the company publicly announced that its Chairman and CEO Xianfu Zhu had made a non-binding offer to acquire all of Zhongpin’s outstanding stock at $13.50 a share, a 46% premium over the previous day’s closing price.

“The defendants in this action – all with seemingly limited resources - suddenly and inexplicably purchased more than $20 million in Zhongpin securities just before an important public announcement,” said Merri Jo Gillette, Director of the SEC’s Chicago Regional Office. “The SEC’s swift action to secure a judicial freeze order prevented millions of dollars from moving offshore.”

The SEC alleges that the purchases of Zhongpin stock and options were inconsistent with the defendants’ financial situations and prior investment behavior. In particular:

The defendants’ trades made up a significant portion of the trading in Zhongpin between March 14 and March 26. Prestige’s purchases alone represented about 41% of the common stock trading in this period.

Only one of the defendants had traded in Zhongpin before March 14.

For most of the individual defendants, the purchases of Zhongpin securities equaled or exceeded their stated annual income and represented a significant portion of their net worth.

Yang identified himself to his broker as an accountant in China with an annual income of $52,500 and a net worth of less than $250,000, when at the time he was a research analyst with a New York–based registered investment adviser.

Each of the defendants placed at least some of their trades from computer networks and hardware that other defendants also used to place trades.

The SEC alleges that the defendants violated federal anti-fraud laws, namely Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. In addition to the emergency relief, the SEC is seeking permanent injunctions, disgorgement of ill-gotten gains with prejudgment interest, and financial penalties. The emergency court order that the SEC obtained on April 4 on an ex parte basis froze defendants’ assets held in U.S. brokerage accounts, grants expedited discovery and prohibits the defendants from destroying evidence.

Jedediah B. Forkner, Marlene B. Key and John E. Kustusch in the Chicago Regional Office conducted the SEC’s investigation, which is continuing. Timothy S. Leiman will lead the SEC’s litigation effort.

The Commission thanks the Options Regulatory Surveillance Authority and the Financial Industry Regulatory Authority for their assistance in this matter. (Press Rel. 2012-54; LR-22320)

The Commission announced that it charged Franklin Bank Corp.’s former chief executives for their involvement in a fraudulent scheme designed to conceal the deterioration of the bank’s loan portfolio and inflate its reported earnings during the financial crisis.

The SEC alleges that former Franklin CEO Anthony J. Nocella and CFO J. Russell McCann used aggressive loan modification programs during the third and fourth quarters of 2007 to hide the true amount of Franklin’s non-performing loans and artificially boost its net income and earnings. The Houston-based bank holding company declared bankruptcy in 2008.

“Nocella and McCann used the loan modification scheme like a magic wand to change non-performing loans into performing assets,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “Their disclosure and accounting tricks misled investors into believing that Franklin was outperforming other banks during the height of the financial crisis.”

David Woodcock, Director of the SEC’s Fort Worth Regional Office, added, “Franklin’s analysts and investors monitored the quality of the bank’s loan portfolio as a key indicator of its financial health. But Nocella and McCann intentionally concealed the fact that the quality of the bank’s loan portfolio was rapidly deteriorating.”

According to the SEC’s complaint filed in U.S. District Court for the Southern District of Texas late Thursday, as Franklin’s holdings of delinquent and non-performing loans rose significantly in the summer of 2007, Nocella and McCann instituted three loan modification schemes that caused Franklin to classify such loans as performing. By the end of September 2007, Nocella and McCann had used the loan modification programs to conceal more than $11 million in non-performing single family residential loans and $13.5 million in non-performing residential construction loans.

As a result of the loan modifications, Franklin overstated its third-quarter 2007 net income and earnings by 317% and 77% respectively, and reported that it earned $0.30 per share, of which $0.23 per share was directly attributable to the loan modifications. On May 2, 2008, in a Form 8-K report filed with the SEC, Franklin acknowledged that the accounting for the loan modifications should be revised and that investors should no longer rely upon Franklin’s Form 10-Q for the quarter ended September 30, 2007.

The SEC’s complaint seeks financial penalties, officer-and-director bars, and permanent injunctive relief against Nocella and McCann to enjoin them from future violations of the federal securities laws. The complaint also seeks repayment of bonuses received by Nocella and McCann under Section 304 of the Sarbanes Oxley Act of 2002, which allows for “clawbacks” of bonuses received by executives if the company later must restate its earnings.

The SEC appreciates the assistance of the Federal Deposit Insurance Corporation in this matter. (Press Rel. 2012-55; LR-22321)

Commission Charges South Florida Man in Investment Fraud Scheme

The Commission today charged that a South Florida investment manager defrauded investors by making false claims about his investment track record and providing bogus account statements that reflected fictitious profits.

In the complaint filed in the U.S. District Court for the Southern District of Florida, the SEC alleges that since 2005, George Elia and International Consultants & Investment Group Ltd. Corp., pulled in at least $11 million from investors by falsely claiming annual returns as high as 26%, and that Elia transferred more than $2.5 million of investor funds to two entities he controlled, Elia Realty, Inc., and 212 Entertainment Club, Inc.

Elia, age 67, and until recently a resident of Oakland Park, Florida, told investors that he had extensive experience in day trading stocks and exchange-traded funds, but his trading resulted in losses or only marginal gains, and the quarterly account statements he sent to clients overstated their returns, the SEC alleged.

According to the SEC’s complaint, Elia typically met and pitched prospective investors over meals at expensive restaurants in and around Fort Lauderdale. The SEC said his clients typically came to him through word-of-mouth referrals among friends and relatives. A significant number of the victims of his scheme were members of the gay community in Wilton Manors, Florida.

"Elia's blatant fraud and cruel deceptions have wrecked the lives of investors and their families," said Eric I. Bustillo, Regional Director of the SEC's Miami Regional Office. "This is a sad lesson that investors must always be skeptical of claims of high and steady investment returns, even when the manager is recommended by trusted friends or members of one’s own community."

In a parallel criminal case, the U.S. Attorney for the Southern District of Florida announced that Elia was indicted on April 5 on one count of wire fraud.

The SEC alleges that Elia and ICIG operated through an informal “Investor Funding Club” and through funds including Vision Equities Fund II, LLC and Vision Equities Fund IV, LLC. It alleges that Elia sent one investor a statement for the first three quarters of 2009, showing returns of 3.48%, 3.48%, and 3.52% respectively. The SEC alleges the statement was false and misleading because the returns exceeded Elia’s trading gains for the period. In at least one instance, the SEC alleges Elia reassured an investor by showing him falsified statements that grossly overstated account balances.

The SEC’s complaint charges that Elia and ICIG violated antifraud provisions of U.S. securities laws and that Elia aided and abetted violations by the firms. The SEC is seeking permanent injunctions against Elia and ICIG, disgorgement of ill-gotten gains plus pre-judgment interest, and civil penalties. The complaint also named Elia Realty, Inc. and 212 Club Entertainment, Inc. as relief defendants.

The Commission thanks the U.S. Attorney’s Office for the Southern District of Florida and the Federal Bureau of Investigation for their assistance in this matter. (Press Rel. 2012-56; LR-22319)

Enforcement Proceedings

Commission Bars Peter Emrich, Frank Rossi, And Dana Valensky from Association with any Broker, Dealer, Investment Adviser, Municipal Securities Dealer, or Transfer Agent and From Participating in any Offering of a Penny Stock

On April 5, 2012, the Commission issued orders barring Peter Emrich (Emrich), Frank Rossi (Rossi), and Dana Valensky (Valensky) (jointly Respondents) from association with any broker, dealer, investment adviser, municipal securities dealer, or transfer agent and from participating in any offering of a penny stock based on their criminal convictions for offenses arising from their sale of securities in unregistered offerings.

Without admitting or denying the findings in the Orders Making Findings and Imposing Remedial Sanctions Pursuant to Section 15(b)(6) of the Securities Exchange Act of 1934, except as to jurisdiction and convictions, which the Respondents each admitted, the Respondents each consented to the entry of separate orders making findings and imposing remedial sanctions.

Emrich consented to an order making the following findings:

From approximately April 1999 through May 2001, Emrich, a resident of San Rafael, California, acted as an unregistered broker-dealer by selling the securities of Out of the Black Partners LLC in unregistered private offerings (the Out of the Black Offering). Emrich held Series 7, 24, 39, and 63 licenses. On June 18, 2003, Emrich pleaded guilty to one count of conspiracy to commit securities fraud in violation of 18 U.S.C. § 371 before the United States District Court for the Eastern District of New York in United States v. Kozak, et al., 02-CR-879 (the “Kozak Case”), a criminal case arising from the Out of the Black Offering. On May 10, 2010, a criminal judgment was entered against Emrich. He was sentenced to two years probation and ordered to pay restitution of $178,775. The count of the indictment in the Kozak Case to which Emrich pleaded guilty, alleged, among other things, that between approximately April 1999 and May 2001, Emrich, and others conspired to defraud investors by concealing the actual amount of sales commissions that would be paid from the proceeds of the Out of the Black Offering.

Rossi consented to an order making the following findings:

From approximately December 1997 through December 1998, Rossi, a resident of Buffalo, New York, acted as an unregistered broker-dealer by selling the securities of Little Giant LLC in an unregistered private offering (the Little Giant Offering). From approximately October 1998 through June 2000, Rossi acted as an unregistered broker-dealer by selling the securities of Heritage Film Group LLC in an unregistered private offering (the Heritage Offering). Rossi held Series 6 and Series 63 licenses. On April 24, 2003, Rossi pleaded guilty before the United States District Court for the Eastern District of New York to two counts of conspiracy to commit securities fraud in violation of 18 U.S.C. § 371 in United States v. Leonard, et al. 02-CR-881 (the “Leonard Case”), a criminal case arising from the Little Giant Offering and the Heritage Offering. On March 21, 2011, a criminal judgment was entered against Rossi. He was sentenced to two years probation. The counts of the indictment to which Rossi pleaded guilty in the Leonard Case alleged, among other things, that Rossi and others conspired to defraud investors by concealing the actual amount of sales commissions that would be paid from the proceeds of the Little Giant and Heritage Offerings.

Valensky consented to an order making the following findings:

Valensky, a resident of Laguna Niguel, California, controlled Vanguard Entertainment Productions, Inc., a California corporation that operated as an independent sales office that offered and sold securities in the Heritage Offering. Valensky acted as an unregistered broker-dealer in the Heritage Offering. Valensky held Series 22 and 63 licenses but was not associated with an entity registered with the Commission during the Heritage Offering. Valensky pleaded guilty before the United States District Court for the Eastern District of New York to one count of conspiracy to commit securities fraud in the Leonard Case and two counts of conspiracy to commit securities fraud in U.S. v. Noorai, et al., 02-CR-880 (the Noorai Case), a criminal case arising from a private offering of securities. On November 10, 2010, a criminal judgment was entered against Valensky in the Noorai and Leonard Cases. Valensky was sentenced to concurrent terms of three years probation in the Noorai and Leonard Cases.

Royal West Properties, Inc. Founding Principal Sentenced In $135 Million Investor Fraud

On April 4, 2012, U.S. District Judge Kathleen Williams of the Southern District of Florida sentenced Gaston E. Cantens to five years’ imprisonment followed by three years of supervised release for conspiring to commit mail and wire fraud in violation of 18 U.S.C. §371 involving a $135 million securities offering fraud and Ponzi scheme targeting Cuban-American investors primarily from South Florida. Cantens, who is now 73, served as president of Royal West Properties, Inc. (Royal West), a Miami-based real estate developer that purchased and resold thousands of parcels of real estate on the west coast of Florida. Cantens funded Royal West by offering investors no-risk promissory notes that promised investors annual returns of 9% to 16% purportedly backed by recorded mortgage assignments. On January 25, 2012, Cantens pled guilty to a criminal Information filed by the United States Attorney for the Southern District of Florida. According to the Information, beginning in 2008, Cantens made numerous material misrepresentations to investors about the financial health of Royal West when Cantens knew that Royal West, among other things, paid existing investors with new investors’ funds, assigned the same collateral to multiple investors, assigned investors to non-performing or non-existing mortgages, and failed properly to record mortgages and other interests in the public records, causing investors to have unsecured legal interests in the mortgages and parcels.

On March 3, 2010 the SEC filed an injunctive action that named Cantens and his wife, Teresita Cantens, as defendants. The SEC’s complaint alleged that Cantens and his wife violated Sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. On March 24, 2011, both Cantens and Teresita Cantens each consented to entry of a Final Judgment of Permanent Injunction and Other Relief in the SEC action. In addition to being enjoined from further violations of the federal securities laws, Cantens and his wife were ordered to pay full injunctive relief and disgorgement of $5,276,750, along with prejudgment interest of $88,297.62. The Order forgoes seeking payment of civil penalties under Section 20(d) of the Securities Act and Section 21(d) of the Exchange Act based on the Cantens’s asserted inability to pay as evidenced by their sworn financial statements and supporting documents submitted to the Commission staff.

In the Matter of Delilah A. Proctor

The Commission announced the issuance of an Order Making Findings and Imposing Remedial Sanctions Pursuant to Section 15(b) of the Securities Exchange Act of 1934 (Order), against Delilah A. Proctor. The Order finds that on January 12, 2011 a judgment was entered against Proctor, permanently enjoining her from future violations of Sections 5(a), 5(c), and 17(a) of the Securities Act of 1933, and Sections 10(b) and 15(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, in the civil action entitled Securities and Exchange Commission v. Sun Empire, LLC, et al., Civil Action Number, SACV09-399 DOC (RNBx), in the United States District Court for the Central District of California.

The Order further finds that the Commission’s complaint alleged that Proctor participated in unregistered offers and sales of securities in Sun Empire, LLC (Sun Empire) and Empire Capital Asset Management (ECAM). In addition, the Order finds that the complaint alleged that Proctor solicited investors from California and Nevada through a multi-level marketing scheme operated from an Anaheim, California hotel. Additionally, the Order finds that the complaint alleged that Proctor made false and misleading statements in the unregistered offer and sale of Sun Empire and ECAM securities, and otherwise engaged in a variety of conduct which operated as a fraud and deceit on investors.

Proctor consented to the issuance of the Order without admitting or denying any of the findings in the Order except as to the Commission’s jurisdiction over her, the subject matter of these proceedings, and the entry of the judgment in the civil injunctive action, which she admitted. (Rel. No. 34-66736; File No. 3-14209)

In the Matter of John M. Williams

The Commission announced the issuance of an Order Instituting Administrative Proceedings Pursuant to Rule 102(e) of the Commission’s Rules of Practice, Making Findings and Imposing Remedial Sanctions (Order) against John M. Williams (Williams).

The Order finds that Williams, age 38, worked for Deloitte Tax LLP (Deloitte) in Philadelphia, Pennsylvania as a tax manager until January 2010. Williams has passed the CPA exam but does not hold a CPA license. The Order finds that on March 2, 2012, the Commission filed a complaint against Williams in SEC v. John M. Williams (Civil Action No. 12-1126 E.D. Pa.). On March 26, 2012, the court entered an order permanently enjoining Williams, by consent, from future violations of Sections 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. Williams was also ordered to pay $6,803.18 in disgorgement of ill-gotten gains from his sales of stock, and $620.05 in prejudgment interest; and a $6,803.18 civil penalty. The Commission’s complaint alleged, among other things, that Williams acquired nonpublic information concerning the acquisition of Hi-Shear Technology Corp. by Chemring Group PLC (Chemring) while providing tax services to Deloitte’s client Chemring. The Complaint also alleged that in violation of Deloitte’s policies and his employment agreement, Williams traded in the shares of Hi-Shear shortly before the September 16, 2009 announcement that Chemring would acquire Hi-Shear. The Complaint further alleged that although Deloitte required Williams to self-report his securities transactions, Williams did not report these trades, and was terminated for cause in January 2010.

Based on the above, the Order suspends Williams from appearing or practicing before the Commission as an accountant with the right to reapply for reinstatement in five years. Williams consented to the issuance of the Order without admitting or denying any of the findings except that he admitted to the entry of the injunction. (Rel. No. 34-66737; AAER Rel. No. 3377; File No. 3-14835)

self-regulatory organizations

Immediate Effectiveness of Proposed Rule Changes

A proposed rule change filed by the Options Clearing Corporation (OCC) rescinding a policy interpretation affecting certain adjustments (SR-OCC-2012-05) has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the Federal Register during the week of April 9. (Rel. No. 34-66742)

A proposed rule change, (SR-CBOE-2012-034), filed by Chicago Board Options Exchange, Incorporated to Correct Hyperlink in Rule 5.5A has become effective pursuant to Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the FederalRegister during the week of April 9. (Rel. 34-66743)

A proposed rule change filed by the International Securities Exchange, LLC (SR-ISE-2012-28) to increase the route-out fee for Priority Customer orders and modify the rebate for Primary Market Makers that send Intermarket Sweep Orders has become effective under Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication is expected in the FederalRegister during the week of April 9. (Rel. 34-66746)

A proposed rule change filed by the NASDAQ Stock Market LLC (SR-NASDAQ-2012-047) to modify the Investor Support Program and the Extended Hours Investor Program under Rule 7014 and to amend the liquidity provider rebate schedule under Rule 7018 has become effective under Section 19(b)(3)(A) of the Securities Exchange Act of 1934. Publication of the notice is expected to be made in the FederalRegister during the week of April 9. (Release No. 34-66747).

Securities Act Registrations

The following registration statements have been filed with the SEC under the Securities Act of 1933. The reported information appears as follows: Form, Name, Address and Phone Number (if available) of the issuer of the security; Title and the number and/or face amount of the securities being offered; Name of the managing underwriter or depositor (if applicable); File number and date filed; Assigned Branch; and a designation if the statement is a New Issue.

Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics

5.06

Change in Shell Company Status

6.01

ABS Informational and Computational Material.

6.02

Change of Servicer or Trustee.

6.03

Change in Credit Enhancement or Other External Support.

6.04

Failure to Make a Required Distribution.

6.05

Securities Act Updating Disclosure.

7.01

Regulation FD Disclosure

8.01

Other Events

9.01

Financial Statements and Exhibits

8-K reports may be viewed in person in the Commission's Public Reference Branch at 100 F Street, N.E., Washington, D.C. To obtain paper copies, please refer to information on the Commission's Web site at http://www.sec.gov/answers/publicdocs.htm. In most cases, you can view and download this information by using the search function located at http://www.sec.gov/edgar/searchedgar/companysearch.html.